HKSAR v. Hameed Abdul

HCMA704/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 704 OF 2011

(ON APPEAL FROM STCC NO. 3392 OF 2011)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 30 November 2011

Date of Judgment : 30 November 2011

Date of Reasons for Judgment : 7 December 2011

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REASONS FOR JUDGMENT

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1.The appellant was convicted after a trial before Deputy Magistrate Cheung Chi Wai, David of one charge of Taking Employment while being a person in respect of whom a removal order was in force, contrary to sections 38AA(1)(b) and (2) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2.He was sentenced to be imprisoned for 20 months and 2 weeks.  On 30 November 2011 I dismissed his appeal against sentence.

3.These are my reasons. 

4.The appellant is a Pakistan National.  He is a claimant under the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment.  On 16 February 2011 he was released from custody on recognizance by the Immigration Department.  It was an admitted fact in the trial that the appellant was aware that he was not permitted take up employment.  On 9 March 2011 a Removal Order under section 19(1)(b) Immigration Ordinance was made against the appellant.  It was an admitted fact in the trial that the appellant was aware that the Removal Order had been made and that it was in force on 20 July 2011.

5.The Magistrate found that on 20 July 2011, the appellant was employed in Hung Hom Kowloon.  He was seen together with other South Asian males unloading a container at the Ground Floor Focal Industrial Centre, No.21 Man Lok Street, Hung Hom. 

6.He was therefore convicted of the offence charged.

The sentence

7.The magistrate applied the sentencing guidelines provided for in HKSAR v Usman Butt [2010] 5 HKLRD 452.  He adopted a starting point for sentence after trial of 22 months and 2 weeks’ imprisonment.  (Given that the appellant had previously been sentenced to be imprisoned for 14 months on 13 July 2010 for a similar offence, this was lenient.)

8.The magistrate reduced that sentence to 20 months 2 weeks to give credit to the appellant for the 47 days detention by the Immigration Department prior to his release on recognizance.

The appeal

9.The appellant told me that he wanted to return to Pakistan as soon as possible.  He said he committed the offence because his mother was ill in Pakistan.  There were no other matters advanced.  The sentence was appropriate and the appeal was dismissed. 

Ms Kathie Cheung, SPP of Department of Justice, for HKSAR

The Appellant in person, present